Citation Nr: 1753436 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 10-02 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a RO hearing in April 2010 and at a Board hearing before the undersigned Veterans Law Judge RO in July 2011. Transcripts of the hearings are of record. In November 2011 and June 2017, the Board remanded the case for additional development and it now returns for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. In a final decision issued in July 1981, the RO confirmed the previously denial of the Veteran's claim of entitlement to service connection for a back disorder. 2. Evidence added to the record since the final June 1981 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The July 1981 decision that confirmed the prior denial of service connection for a back disorder is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C. § 7105(c) (West 2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1981) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. 2. New and material evidence to reopen the Veteran's claim of entitlement to service connection for a back disorder has not been received. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). From the date of notification of an Agency of Original Jurisdiction (AOJ) decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a Statement of the Case, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the VA received the Veteran's original claim for service connection for a back disorder in March 1973. In a May 1973 rating decision, the RO considered the Veteran's service treatment records and an April 1973 VA examination report. The RO noted that the Veteran's service treatment records reflect that, in February 1966, he was in a tractor accident where he sustained abrasions and scarring of the left thigh and perineal area. However, a back condition was not shown on the April 1973 VA examination. Therefore, the RO denied service connection for a back condition. The Veteran was notified of the decision and his appellate rights the same month, but he did not initiate an appeal within one year. Rather, he submitted additional evidence showing a current diagnosis of a back disorder. Specifically, in June 1973 and August 1973, the Veteran submitted letters from Dr. R.S. stating that an X-ray of the dorsal spine taken in May 1973 revealed a compression type deformity at T8. In a September 1973 rating decision, the RO considered such evidence, but denied service connection for a compression like deformity at T-8 on the basis that such condition was not shown in service. Rather, the evidence showed that the Veteran had reported that the onset of pain in such area was about a year previously and followed lifting while working. The Veteran was notified of the decision and his appellate rights the same month, but he did not initiate an appeal within one year. In April 1981, the Veteran filed a petition to reopen his claim for service connection for a back disorder. In connection with such application, he submitted a May 1981 X-ray that revealed mild wedging of the vertebral body of T7 suspected, and early degenerative changes in the dorsal and lumbar spines. In June 1981, the AOJ considered the May 1981 X-ray report, which was new, but not material as it did not relate the Veteran's back condition to service. Consequently, the prior denial was continued. The Veteran was notified of the decision and his appellate rights in a July 1981 letter, but he did not initiate an appeal within one year. In October 1981, the Veteran submitted a lay statement repeating his assertions that he incurred a back disorder as a result of his in-service tractor accident as well as a copy of the May 1981 X-ray report. Consequently, such evidence is duplicative of that previously considered at the time of the July 1981 decision. A December 1981 VA examination report was also associated with the file within one year of such decision; however, it does not pertain to the Veteran's claimed back disorder and, thus, is likewise immaterial to such claim. In this regard, the Veteran was advised in a March 2009 letter that needed to submit new and material evidence so as to reopen his claim for service connection for a back disorder. Consequently, the Board finds that no new and material evidence was received within one year of the July 1981 decision. Furthermore, no relevant service department records have been received since such time. Therefore, the July 1981 decision is final. 38 U.S.C. § 4005(c) (1976) [38 U.S.C. § 7105(c) (West 2012)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1981) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017)]. The evidence received since the July 1981 decision includes lay statements from the Veteran (including his testimony at his hearings), VA treatment records, and private treatment records. However, while such evidence is new, it is not material as it is cumulative and redundant of evidence previously of record and does not relate to an unestablished fact or raise a reasonable possibility of substantiating the Veteran's claims for service connection for his back disorder. In this regard, the lay statements and hearing testimony include duplicative information regarding the incurrence of the in-service injury the Veteran alleged caused his back disorder as he had provided the same information in conjunction with his previous claims for benefits. Furthermore, while the newly received VA and private treatment records reflect a current back disorder, such fact was previously of record at the time of the July 1981 decision. Rather, as noted previously, the July 1981 decision continued the denial of the Veteran's claim for service connection for a back disorder on the basis that such was not shown to be related to his military service. The evidence received since such decision likewise fails to demonstrate that his current back disorder is related to his military service. Therefore, the Board finds that the evidence received since the final July 1981 decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claims for service connection for a back disorder. Consequently, new and material evidence has not been received to reopen such claim and the Veteran's appeal must be denied. As new and material evidence to reopen the finally disallowed claim of entitlement to service connection has not been received, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER New and material evidence not having been received, the application to reopen a claim of entitlement to service connection for a back disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs